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Art. 18 BGFA — Scope of the Prohibition to Practise
#Doctrine
#1. Legislative History
N. 1 Art. 18 BGFA originates from the Federal Council's draft of the Lawyers Act of 28 April 1999. The explanatory report (BBl 1999 6013, p. 6049) emphasises, as the underlying rationale, the harmonisation at federal level of the register-law effects of disciplinary measures. Consistent with the freedom-of-movement character of the Act, the prohibition to practise was not to be limited to the canton imposing it, but was to apply throughout Switzerland. The aim was to prevent a sanctioned lawyer from «evading» to another canton (BBl 1999 6013, pp. 6049 f.).
N. 2 The parliamentary proceedings involved several rounds of conciliation (National Council, 1 September 1999; Council of States, 20 December 1999; National Council, 7 March 2000; Council of States, 16 March 2000 — referral back; Council of States, 5 June 2000; National Council, 14 June 2000; Council of States approval, 20 June 2000; final vote of both chambers, 23 June 2000). The wording of Art. 18 BGFA remained essentially unchanged throughout; the parliamentary divergences concerned primarily other parts of the draft Act (in particular professional secrecy and the conditions for registration). The notification obligation under para. 2 was introduced as a logical consequence of the nationwide applicability under para. 1.
#2. Systematic Classification
N. 3 Art. 18 BGFA forms part of the chapter on professional rules and supervision (Arts. 12–20 BGFA). It is directly linked to the catalogue of disciplinary measures in → Art. 17 BGFA (temporary and permanent prohibition to practise) and to the register deletion periods in → Art. 20 BGFA. The provision takes effect in the intercantonal context: it ensures the practical enforceability of the most severe disciplinary sanctions throughout Switzerland. Art. 18 BGFA thus complements Art. 16 BGFA (intercantonal procedural coordination) and Art. 10 para. 1 BGFA (access to registers by cantonal supervisory authorities).
N. 4 Systematically, Art. 18 BGFA forms a counterpart to Art. 6 para. 1 BGFA, under which lawyers registered in one canton may practise throughout the entire territory of Switzerland. Nationwide freedom of movement (Art. 6 para. 1 BGFA) and nationwide prohibition to practise (Art. 18 para. 1 BGFA) are mirror images of each other: both freedom of movement and sanctions apply equally throughout Switzerland. ↔ Art. 6 para. 1 BGFA.
N. 5 The BGFA exhaustively governs disciplinary measures against lawyers (BGE 150 II 308 consid. 7.4; BGE 132 II 250 consid. 4.3.1; BGE 130 II 270 consid. 1.1; BGE 129 II 297 consid. 1.1). Cantonal law may not provide for additional, milder, or more severe measures. Art. 18 BGFA constitutes, in this context, the uniform enforcement framework: the federal law sanction takes effect nationwide, and cantonal law can neither limit nor extend its scope.
#3. Elements of the Provision / Normative Content
N. 6 Paragraph 1: Nationwide applicability. Art. 18 para. 1 BGFA provides that a prohibition to practise applies «throughout the entire territory of Switzerland». This provision applies to both types of prohibition to practise under → Art. 17 para. 1 lit. d BGFA (temporary prohibition to practise for a maximum of two years) and → Art. 17 para. 1 lit. e BGFA (permanent prohibition to practise). The prohibition encompasses the representation of parties before judicial authorities of all cantons as well as all forms of professional party representation subject to the lawyers' monopoly. Advisory activities falling outside the monopoly are not covered: a sanctioned lawyer may in principle continue to provide legal advice, provided that he or she does not hold themselves out as a lawyer or legal agent (BBl 1999 6013, p. 6060; Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 740; VerwG SG B 2015/6 of 23 August 2016 consid. 5.3).
N. 7 Paragraph 2: Notification obligation. The prohibition to practise «shall be notified to the supervisory authorities of the other cantons». The obligation to notify rests with the supervisory authority of the canton that imposed the prohibition. The notification is addressed to the supervisory authorities of all other cantons. The phrase «other cantons» (also «la notifier aux autorités de surveillance des autres cantons» in the French version) refers to all cantons other than the one that issued the prohibition. Notification to the issuing canton's own authority is unnecessary, since the prohibition takes effect there directly by virtue of the ruling. The Cantonal Court of St. Gallen expressly confirmed in BR.2009.1 of 19 January 2010 that the revocation of a patent may be published in the cantonal official gazette and notified to the other cantonal supervisory authorities, citing the notification obligation under Art. 18 para. 2 BGFA as the legal basis.
N. 8 Relationship to Art. 5 para. 2 lit. e and Art. 10 BGFA. The prohibition to practise, as a disciplinary measure, must be entered in the cantonal register of lawyers (→ Art. 5 para. 2 lit. e BGFA). The cantonal supervisory authorities are granted access to the registers upon request (→ Art. 10 para. 1 lit. c BGFA). According to BGE 150 II 308 consid. 7.8, the authorities throughout Switzerland are thereby in a position to be informed of any prohibition to practise and to prevent any violation thereof.
N. 9 Distinction from publication in the cantonal official gazette. Art. 18 BGFA governs exclusively notification to the supervisory authorities. The BGFA does not provide for any further publication of the prohibition to practise in the cantonal official gazette (BGE 150 II 308 consid. 7.5). Since the BGFA exhaustively governs disciplinary measures (BGE 150 II 308 consid. 7.4), the Federal Supreme Court has qualified as contrary to federal law any publication of a temporary prohibition to practise in the cantonal official gazette ordered on the basis of cantonal law: such publication constitutes an independent, repressively operating sanction that is not provided for in the catalogue in → Art. 17 BGFA and therefore conflicts with the supremacy of federal law under Art. 49 para. 1 FC (BGE 150 II 308 consid. 7.9).
#4. Legal Consequences
N. 10 The prohibition to practise, which applies throughout Switzerland by virtue of Art. 18 para. 1 BGFA, is enforceable by the supervisory authority that imposed it; every other cantonal supervisory authority is empowered to enforce the prohibition. A lawyer who disregards the prohibition and appears before courts of another canton commits a violation of Art. 2 para. 1 BGFA and may be subjected to fresh disciplinary proceedings.
N. 11 The notification obligation under Art. 18 para. 2 BGFA is an official duty of the competent supervisory authority. It arises automatically upon the prohibition becoming enforceable. Federal law prescribes no formal requirements for the notification; in practice, it is regularly made in writing. Cantonal procedural law may regulate the modalities in greater detail. Failure to provide notification does not affect the validity of the prohibition to practise itself — by virtue of Art. 18 para. 1 BGFA, the prohibition applies throughout Switzerland irrespective of notification (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 740; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 2094).
N. 12 Pursuant to → Art. 20 para. 2 BGFA, the prohibition to practise must be deleted from the register ten years after its lifting (in the case of a temporary prohibition); a permanent prohibition to practise is not deleted. The notification obligation under Art. 18 para. 2 BGFA correspondingly also covers the lifting of the prohibition: under Art. 16 para. 2 BGFA, the intercantonal supervisory authorities are in any event involved in the proceedings; notification of the lifting serves the interest of coherent register management across all cantons (Bohnet/Martenet, op. cit., N. 2094).
#5. Contested Issues
N. 13 Consideration of deleted disciplinary measures when determining sanctions. The most significant controversy concerning Art. 18 BGFA relates to the question whether sanctions that have been deleted from the register pursuant to → Art. 20 BGFA may be taken into account when determining the severity of subsequent disciplinary measures. Brunner/Henn/Kriesi, Anwaltsrecht, 2015, p. 251 take the view that measures no longer visible in the register must be disregarded in subsequent disciplinary proceedings. The Federal Supreme Court expressly rejected this position in BGE 150 II 308 consid. 5.10 and established a contrary view: supervisory authorities may take into account earlier misconduct — including sanctions already deleted from the register — when determining disciplinary sanctions. The decisive consideration is that the significance of an earlier measure diminishes as the time elapsed increases (BGE 150 II 308 consid. 5.8 and 5.10).
N. 14 In BGE 150 II 308 consid. 5.7, the Federal Supreme Court expressly grounded its position in the explanatory report to the BGFA (BBl 1999 6013, pp. 6045 and 6061): the register-law provisions of the BGFA aim solely at harmonisation between cantons; no prohibition on the use of deleted sanctions can be derived therefrom. At the same time, the Federal Supreme Court rejected the analogy with the former prohibition on use in criminal law (former Art. 369 para. 7 SCC): disciplinary law serves primarily to protect the public from problematic conduct, not the rehabilitation of the person concerned (BGE 150 II 308 consid. 5.8). This distinction from criminal law is fundamental to understanding the purpose of Art. 18 BGFA within the overall framework of disciplinary law.
N. 15 Cantonal publication of the prohibition to practise. Prior to BGE 150 II 308, cantonal practice on the question of publication in the official gazette was inconsistent. The Administrative Court of St. Gallen had in B 2015/6 of 23 August 2016 still affirmed the publication of a temporary prohibition to practise in the cantonal official gazette — on the basis of a case-by-case balancing of interests as to whether a predominant public interest existed (consid. 5.4). The Cantonal Court of St. Gallen had reached a similar conclusion in BR.2009.1 in relation to a patent revocation. This cantonal practice was qualified as contrary to federal law by BGE 150 II 308 consid. 7.9: publication in the cantonal official gazette constitutes an independent repressive sanction absent from the exhaustive catalogue of Art. 17 BGFA. The Federal Supreme Court thereby corrected cantonal practice and enforced the exhaustive nature of federal disciplinary law against additional cantonal measures.
#6. Practical Notes
N. 16 For supervisory authorities, notification pursuant to Art. 18 para. 2 BGFA is mandatory; failure to notify does not render the prohibition to practise void, but constitutes a breach of official duty. In practice, notification should be made without delay after the ruling becomes enforceable. Delivery to all 25 other cantons may be effected through the intercantonal coordination system of the bar associations.
N. 17 Lawyers subject to a temporary prohibition to practise must be informed of the limitations: they may continue to provide legal advice outside the monopoly area, but must refrain from conducting court proceedings and from acting as a lawyer. This distinction is relevant in practice for communication with clients and for any substitute arrangements (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 740).
N. 18 In light of BGE 150 II 308 consid. 7.9, cantonal law providing for the publication of prohibitions to practise in official organs — insofar as such publication constitutes an independent sanctioning effect — is contrary to federal law and must no longer be applied. Supervisory authorities must interpret existing cantonal statutory bases restrictively in this sense and, where appropriate, urge the legislature to amend such provisions. According to the Federal Supreme Court's conception, the public's need for information is adequately met by access to the register under Art. 10 BGFA and by notification under Art. 18 para. 2 BGFA (BGE 150 II 308 consid. 7.8).
N. 19 In the intercantonal context, supervisory authorities conducting new disciplinary proceedings are authorised to request register extracts from other cantons (→ Art. 10 para. 1 lit. c BGFA). They may also take into account earlier, already-deleted sanctions, but must give these diminishing weight as time passes (BGE 150 II 308 consid. 5.10). The intercantonal consultation procedure under Art. 16 para. 2 BGFA gives the supervisory authority of the registration canton the opportunity to comment on a planned sanction and to communicate knowledge of previously deleted measures (BGE 150 II 308 consid. 5.9).
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